37 U.S. Code § 305 - Special pay: hardship duty pay

(a) Special Pay Authorized.— A member of a uniformed service who is entitled to basic pay may be paid special pay under this section while the member is performing duty that is designated by the Secretary of Defense as hardship duty.

(b) Payment on Monthly or Lump Sum Basis.— Special pay payable under this section may be paid on a monthly basis or in a lump sum.

(c) Maximum Rate or Amount.—

(1)The monthly rate of special pay payable to a member under this section may not exceed $1,500.

(2)The amount of the lump sum payment of special pay payable to a member under this section may not exceed the product of—

(A)the maximum monthly rate in effect under paragraph (1) at the time the member qualifies for payment of special pay under this section; and

(B)the number of months during which the member will be performing the designated hardship duty.

(d) Relationship to Other Pay and Allowances.— Special pay paid to a member under this section is in addition to any other pay and allowances to which the member is entitled.

(e) Repayment.— A member who is paid special pay in a lump sum under this section, but who fails to perform the designated hardship duty during the months included in the calculation of the amount of the lump sum under subsection (c)(2), shall be subject to the repayment provisions of section
303a(e) of this title.

(f) Regulations.— The Secretary of Defense shall prescribe regulations for the payment of hardship duty pay under this section, including the specific monthly rates at which the special pay will be available.

In subsection (a), the words “Except as provided by subsection (b) of this section” are inserted for clarity. The words “is also . . . entitled” are substituted for the words “shall, in addition thereto . . . be entitled”. The words “any place outside the United States, or in Alaska or Hawaii” are substituted for the words “beyond the continental limits of the United States or in Alaska”, since, under the source statute, Hawaii was beyond the continental limits of the United States, and the United States, as defined in section 101(1) of this revised title, would otherwise include Alaska and Hawaii. This interpretation conforms to the opinion of the Comptroller General, B–138956, April 20, 1959 (38 Comp. Gen. 710).

In subsection (b), the words “Appropriation of” are substituted for the words “of the funds appropriated to” The words “may not be paid” are substituted for the words “no part . . . shall be available for the payment” The words “member of a uniformed service” are substituted for the words “person in the military service” to conform to subsection (a). The words “Puerto Rico” are inserted for clarity, since the source statute was applicable to that place. The words “Virgin Islands” are inserted, since that unincorporated territory is not covered by the word “possession”. The word “Territory” is omitted as obsolete.

“(a) Special Pay Authorized.—A member of a uniformed service who is entitled to basic pay may be paid special pay under this section at a monthly rate not to exceed $750 while the member is performing duty in the United States or outside the United States that is designated by the Secretary of Defense as hardship duty.

“(b) Regulations.—The Secretary of Defense shall prescribe regulations for the provision of hardship duty pay under subsection (a), including the specific monthly rates at which the special pay will be available.”

Subsec. (a). Pub. L. 105–261, § 617(a)(1), substituted “performing duty in the United States or outside the United States that is designated by the Secretary of Defense as hardship duty.” for “on duty at a location in the United States or outside the United States designated by the Secretary of Defense as a hardship duty location.”

Pub. L. 105–261, § 617(a)(2), struck out heading and text of subsec. (b). Text read as follows: “Appropriations of the Department of Defense may not be paid, as hardship duty location pay under subsection (a), to a member of a uniformed service who is a resident of a State, Puerto Rico, the Virgin Islands, a possession, or a foreign country and who is serving in that State, Puerto Rico, the Virgin Islands, that possession, or that foreign country, as the case may be.”

Subsec. (c). Pub. L. 105–261, § 617(a)(2), struck out heading and text of subsec. (c). Text read as follows: “A member receiving special pay under section
305a of this title may not be paid hardship duty location pay under subsection (a) for the same period of service.”

Subsec. (a). Pub. L. 105–85, § 619(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Except as provided by subsections (b) and (c), under regulations prescribed by the President, an enlisted member of a uniformed service who is entitled to basic pay may, while on duty at a designated place outside the 48 contiguous States and the District of Columbia, be paid special pay at the following monthly rates:

Subsec. (a). Pub. L. 95–485, § 804(b)(1)(A), inserted reference to subsec. (c) of this section and struck out provision entitling an enlisted member of a uniformed service who is entitled to basic pay to special pay while on sea duty.

1963—Pub. L. 88–132substituted “while on sea duty or duty at certain places” for “sea and foreign duty” in section catchline.

Subsec. (a). Pub. L. 88–132designated existing provisions as cl. (1) and substituted provisions of cl. (2) permitting special pay for an enlisted member of a uniformed service while on duty at a designated place outside the contiguous 48 States and the District of Columbia for former provision entitling such member to special pay while on duty in any place outside the United States, or in Alaska or Hawaii.

Subsec. (b). Pub. L. 88–132substituted “a State, Puerto Rico, the Virgin Islands, a possession, or a foreign country and who is serving in that State, Puerto Rico, the Virgin Islands, that possession, or that foreign country” for “Alaska, Hawaii, Puerto Rico, the Virgin Islands, or a possession, unless that member is serving in an area outside Alaska, Hawaii, the Virgin Islands, or a possession, of which he is a resident”.

Amendment by Pub. L. 90–623intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 ofPub. L. 90–623, set out as a note under section
5334 of Title
5, Government Organization and Employees.

Pub. L. 88–132, § 12(b),Oct. 2, 1963, 77 Stat. 218, provided that: “Notwithstanding subsection (a) [amending this section], an enlisted member who, on the day before the effective date of this Act [Oct. 1, 1963], was permanently assigned to duty at a place outside the United States or in Alaska or Hawaii, shall, during the remaining period of that assignment, but not after that place is designated for the purpose of section
305(a)(2) of title
37, United States Code, be paid the basic pay to which he was entitled on that date plus special pay under section
305 of title
37, United States Code, whenever qualified thereunder as that section was in effect on the day before the effective date of this Act, if the total of that basic pay and that special pay is more than the basic pay to which he would otherwise be entitled during that period under section 2 of this Act [amending section
203 of this title].”

Transition Provision

Pub. L. 105–85, div. A, title VI, § 619(e),Nov. 18, 1997, 111 Stat. 1790, provided that: “Until such time as the Secretary of Defense prescribes regulations regarding the provision of hardship duty location pay under section
305 of title
37, United States Code, as amended by this section, the Secretary may continue to use the authority provided by such section
305, as in effect on the day before the date of the enactment of this Act [Nov. 18, 1997], to provide special pay to enlisted members of the uniformed services on duty at certain places.”

Sea Duty Performed Between October 1, 1978, and September 30, 1981

Pub. L. 95–485, title VIII, § 804(c),Oct. 20, 1978, 92 Stat. 1621, provided that: “Any individual who on September 30, 1978, is an enlisted member of a uniformed service shall be eligible to receive special pay under section
305(a)(1) of title
37, United States Code, as in effect on September 30, 1978, for any period of sea duty performed by such individual during the period beginning on October 1, 1978, and ending on September 30, 1981, for which such individual does not receive special pay under section 305a of such title (as added by subsection (a)).”